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Copyright and Intellectual Property

It has become apparent to some members of Elftown that there is a widespread lack of knowledge about the concepts of copyright and intellectual property. So, for those who want to learn more about these concepts, and for those of you who wish to teach or share with others what you do know, please feel free to participate in the discussion, and post any information and/or links that you might think might be useful to others.

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2. Please keep all comments to this Wiki page *on topic*. Casual chatter or off-topic conversation interferes with the intended use of this page, which is to serve as an informational resource, where people can use the comments section to ask questions.

So what is a Copyright, anyway?

A copyright is basically a form of ownership of an item. In this case, however, the item owned isn't exactly something you can touch (even though it may *involve* something you can touch) -- instead, it's ownership of the *idea* that the created item represents.

Not only does the copyright holder own the thing they've created (or had created for them -- copyright automatically belongs to the creator at the time the thing is created, but may be assigned or sold), they own the right to create copies and/or derivative works based on the thing created.

So, in short, copyright is ownership of the right to use or make copies of a thing that you've created.

What kinds of items are protected under copyright law?

Copyright, as defined by the US Government's official Copyright Office, "protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture". It is important to note that copyright law does not apply to facts, ideas, systems, or methods of operation, although it may apply to the way these things are expressed. Designs for tangible items, while themselves copyrighted (as designs) are covered under a different set of laws, known as "patent" laws, when it comes to their physical expression in the form of a manufactured item. So the blueprints for an item are a copyrighted "original work of authorship", but in order to protect, say, a manufactured item or manufacturing process, the plans themselves are then used to apply for a patent. A patent differs from a copyright in several ways, and may include the requirement that a physical model (of the item or process being patented) be created.

In short, physical things are patented, things that are expressions of ideas for the purposes of communicating the ideas (written works, pictures, dances, etc.) are copyrighted, and business names and logos are covered under yet another set of laws, as "registered trademarks".

But you can't lay claim to a fact or an idea, any more than you can lay claim to a law of nature - nobody can legally claim to own the information that "the sun rises in the east", or the concept of fairies having pointy ears and/or wings.

On the other hand, a person *can* lay claim to the idea of dragons of a certain description, which are ridden to fight interplanetary spores, for instance -- this has been done, and woe betide the person who infringes upon that ownership, by copying that representation without permission of its creator and copyright holder. Anne McCaffrey and her legal staff have no sense of humor about this, and she *will* pursue violators, no matter how private the use.

What is a derivative work?

This has turned out to be one of the areas of copyright law most often ignored by fantasy and SF artists and writers, and indeed, the entire concept of "Fan Art" is a quasi-legal one, as a result of these laws. A derivative work is any creation, including visual arts and products of the written word (as well as many other items, including performances, music, and more), in which the creator of the work makes use of another piece of creative work in its creation. This includes items which include someone else's images, photographs, characters,

I still don't understand -- can you give me an example?

If you buy a card with someone's artwork on it, you own the card -- not the right to make copies of the picture on it. If you buy a cassette tape with a song recorded on it, you own the CD -- not the right to play the song in the background on your TV advertisement (or web page). If you buy a book, you have the right to read it, loan it, or use it to prop up the wobbly leg on your table; but you don't have the right to photocopy it, write about the characters in the story, or even draw pictures of them, unless the copyright holder says you can.

Only the copyright holder has that right to copy and/or distribute copies of the thing they've created.

Why does copyright exist?

Copyright laws are necessary to protect the intellectual property of people whose work is primarily in the form of creating something intangible, like a song, story, image, computer program, etc.

This is because the creative arts are not like a banana, or the floppy disks and/or pieces of paper on which they are often created; these are things which only exist in one "instance", and cannot be copied. (You *can* photocopy a floppy disk, but it won't hold any data, and I hope I don't have to explain to any of you how ludicrous it is to imagine photocopying a piece of paper in order to reproduce it.) Since these things can only be in the possession of one person at a time, simple laws of ownership are enough to protect a person's rights in them.

The items to which copyright applies are not like that; they can exist in more than one place at a time, and copies can be made without going to the same amount of work that it took to make the original. So the products of a creative artist, or other creative person whose product is primarily in the form of a concept or other intangible, are not protected if the creator is seen as owning only the physical item created.

So what is Intellectual Property, and what does it have to do with my art?

Intellectual Property, quite simply, is any idea or concept which someone owns. This can include a copyrighted piece of music or artwork, a story, a piece of software, or even the character concepts around which a series of stories are based. This means that if you write a story about Captain Kirk and Mr. Spock, you're violating Paramount's copyright, by stealing and making use of something which is their intellectual property.

Why do I need to know this?

To quote [amuletts]. "If you infringe copyright it can get you into major trouble and if you are an artist it is one of the most important laws you need to be aware of."

You have a right to know what rights you have in your own creations -- and you need to know what rights others have in theirs. Otherwise, you are in danger of infringing on someone else's copyright, unintentionally, and the law doesn't care about intentions when you steal someone's idea, any more than it does when you steal their bicycle. "But officer, I thought it was mine" doesn't work as an excuse, in either case.

Where does "Fan Art" and "Fan Fiction" come into all of this?

I'm very glad you asked that; but, you may not be so happy with the answer. In short, "Fan Art" and "Fan Fiction" almost all (if not all) falls into the category of "Derivative Works", items created using another created item as a basis for the work, or as a recognizable portion of the completed work. Most of it (if not all) is technically illegal, and while some authors/artists/etc. allow and/or even encourage fans to build on their own work, considering it a form of free advertising, good public relations, or just a necessary part of building a loyal customer base, others are very strict about enforcing their rights, as many a misinformed fan has learned to their sorrow.

Please feel free to submit links and information to these pages, if you have anything useful to contribute.

NOTE: Please keep all comments on these Wiki pages *on topic* to the Wiki -- i.e., related to the subjects of copyright and/or intellectual property.

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2004-06-20[Chaos Scene]: well at least some one else knows the real law

2004-06-21[Rondel]: I hope you've found the Wiki useful and interesting. I tried to make the concepts easy to relate to and understand, so that creative artists (writers included) can really get a sense of just what these laws mean to them (us), as well as making it make more sense to the art/music appreciater/consumer/fan. It's hard to know how well I succeeded, but I hope that this is making it easier for people to understand the role of these laws, and I'm very honoured that the Elftown Crew has chosen to reference these pages in their Uploading Art Rules. :)

2004-06-21[Chaos Scene]: I shall also aplaud you for your fine work and helping towards a brighter tommorow

2004-06-21[Rondel]: Thank you! <bows, humbly but with some satisfaction in a job well done>

2004-06-21[Chaos Scene]: Ya should be given a special place in the council "The Law Enforcer" lol

2004-06-24[Rondel]: I don't think that's at all necessary... but they did give me a nifty badge when they added this Wiki to the Uploading Art Rules. :) That's quite enough for me -- I'm happy to contribute, and inform, but I'm just as glad not to have the responsibility that the guards here (and the police as well) must live with, of enforcing the rules here and in the world at large.

2004-07-07[DanClark]: Question: Let's say I create a work that is based on the writings of another, does that fall into the realm of copyright infringement? If I offer no link to said work( ie in the title) would my creation still be considered Fan-art? And if that is true, wouldn't all art be considered Fan art?

2004-07-07[Rondel]: It depends on several things -- how recently was the original created (after a while, things tend to pass out of individual ownership, and into being part of the fabric of society)? How much of your work is built on the other creation? Is there a copyright holder, and if so, have you obtained their consent? Also, when talking about the law, I tend to avoid the term "Fan Art", because it has no legal meaning; legally, something is either a derivative work (or a satire or parody, covered separately under the law), or it's not. "Fan art", per se, has no legal meaning. And, I'm not a lawyer. But I can recommend another good site, as well as suggesting that you check out the links page. :)

2004-07-07[Rondel]: New addition to the Links page: * What Is Copyright?http://www.whatiscopyright.org/ -- this site was written using the Berne Union for the Protection of Literary and Artistic Property (Berne Convention) as the main bibliographical source, and does not refer to the laws of any country in particular; most countries are members of the Berne Convention and the Universal Copyright Convention (UCC), which allow you to protect your works in countries of which you are not a citizen or national.

2004-07-07[Rondel]: I'm not sure what you mean about "If I offer no link to said work( ie in the title) would my creation still be considered Fan-art?" Either your work is built upon the work of another, based on concepts which they've expressed in ways to which they now own the copyright, or it isn't. If you don't connect your work to those concepts by anything other than the title, then I suppose changing the title might make a difference; but if I were to write a story based on my imagination of the life of one of Wendy & Richard Pini's Elfquest elves, I'd be violating their copyright by the creation of a derivative work without their permission, regardless of what I titled it...

2004-07-07[Rondel]: ...*unless* I was creating a parody or satire, or quoting a small excerpt in a way that was not fundamental to my creation (like including a short quote from "Catcher in the Rye" in another novel, that was otherwise unrelated to Salinger's book). If I write a story called "Sorrow's End", but it's NOT about Elfquest elves, then I'm not violating the Pini's copyright, although there is a place of that name that is central to some of their stories. It's about whether your work "derives from" the other, not really about overt connections or the inclusion/omission of direct citations, such as in the title, for instance. I hope that this response is useful -- I really recommend reading the links.